2009 FMLA Changes

On January 16, 2009, the Department of Labor’s final rule on the Family and Medical Leave Act (FMLA) will go into effect. (Federal Register, 29CFR Part 825) The final rule is intended to reduce the likelihood of misinterpretation of the Act by employers, employees, health care providers, and courts. The final rule does not reduce the law’s coverage for workers who need FMLA leave. The final rule comes as a result of a two year DOL survey of public comments on issued proposals. One of the most significant impacts of the final rule is in regards to the passage of the military family leave provisions in the National Defense Authorization Act for fiscal year 2008, Public Law 110-181. Due to the NDAA, FMLA now provides for two new leave entitlements:

Military Caregiver Leave or Covered Servicemember Leave: Under the first of these new military family leave entitlements, eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty. This entitlement is a special provision that extends FMLA protected leave from the normal 12 weeks to 26 weeks of FMLA leave. Also this rule extends FMLA protection to additional family members beyond those who may take FMLA leave for other qualifying reasons.

Qualifying Exigency Leave: The second new military leave entitlement helps families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The Department’s final rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave: (1) Short-notice deployment; (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation; (7) Post-deployment activities; and (8) Additional activities not covered under the other categories, but agreed to by the employer and employee.

Some other items addressed by the final rule include:

“Light Duty” assignments following FMLA leave do not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the time when the employee is on light duty

Waiver of Rights by out-of-court settlements

For Serious Health Conditions, the rule specifies that in the case of more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider”, the two visits to a health care provider must take place within 30 days of the beginning of the period of incapacity. Where continuing treatment applies, the first visit to the health care provider must take place within seven days of the first day of incapacity. “Periodic visits” for chronic serious health conditions are defined as at least two visits to a health care provider per year.

“Substitution of Paid Leave” has been defined as including all forms of paid leave offered by an employer

Employer Notice Obligations are clarified to include: provision to employees of a general notice about the FMLA (through a poster or an employee handbook and upon hire); an eligibility notice; a rights and responsibilities notice; and a designation notice. In order to ensure employers are able to better inform employees under the new notice provisions, the final rule extends the time for employers to provide various notices from two business days to five business days.

Employee Notice Obligations are clarified to include: some employees are allowed to provide notice to an employer of the need for FMLA leave up to two full business days after an absence

HIPAA privacy rules apply when employers secure medical certification for FMLA leave. In addition, if an employer needs more information from a health care provider regarding FMLA medical certification, the employer must specify in writing what information is lacking and allow the employee seven calendar days to provide the additional information.

Medical Recertification: In all cases, the final rule allows an employer to request recertification of an ongoing condition every six months in conjunction with an absence.

Physician Assistants are now considered to be “health care providers”.

The final rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.

As with any situation involving issues of employment law or the FMLA, always consult legal counsel before implementing a decision which might affect your employees’ rights or responsibilities. If you have any questions or concerns regarding the Final Rule, please visit http://www.dol.gov/esa/whd/fmla/finalrule.htm